Craig v. Stagner

Citation19 S.W.2d 234
PartiesCRAIG et al. v. STAGNER.
Decision Date20 July 1929
CourtSupreme Court of Tennessee

Certiorari to Court of Appeals, on Appeal from Circuit Court, Carroll County; W. W. Bond, Judge.

Action by J. L. Stagner against Frank Craig and another. Judgment for plaintiff was affirmed by the Court of Appeals, and defendants bring certiorari. Affirmed.

Maddox & Maddox, of Huntingdon, for plaintiffs in error.

J. Sam Johnson and J. C. R. McCall, both of Huntingdon, for defendant in error.

CHAMBLISS, J.

The Court of Appeals has affirmed a judgment for damages for the killing of a dog by defendant driving a motor car on the public highway. The case is here on petition for certiorari, which has been granted and argument heard.

The negligent killing and the amount of the award are questions of fact settled by the judgments of the lower courts, but petitioner here invokes application of our statute, Shannon's Code, § 2853a4, declaring it unlawful for the owner or keeper of a dog to allow the dog to go upon a highway, subject to exceptions not pertinent here. Violation of this statute was held, in C. N. O. & T. P. R. v. Ford, 139 Tenn. 291, 293, 202 S. W. 72, extending the application of the statute to railroads as "highways," to be such contributory negligence as bars a recovery by the offending owner.

We approve the general rule announced. The presence of loose dogs is even more of a nuisance and menace on a public highway of the character here in question than on a highway of the railway class, and the statute was even more obviously passed for the protection of the defendant herein than in the Ford Case. Nothing more appearing it would seem to follow that, despite the concurrent finding of the negligent killing of the dog by the defendant and the determination of the amount of the damages, the plaintiff is cut off from recovery by his contributory negligence in allowing his dog to run at large on the highway.

However, another and closer question arises on this record. A well-recognized exception to the rule that contributory negligence bars in a common-law action applies when the misconduct of the defendant is of the wanton or willful class. This is well settled. Among our cases so holding are Memphis St. Railway v. Roe, 118 Tenn. 601, 102 S. W. 343; Cash v. Casey-Hedges Co., 139 Tenn. 179, 201 S. W. 347; Fairbanks, Morse & Co. v. Gambill, 142 Tenn. 633, 222 S. W. 5. Have we here a case on its facts for the application of this exception? Both the trial judge in his finding of facts and the Court of Appeals characterize the conduct of the defendant as "gross negligence." Says the Court of Appeals: "In this case the dogs were on the north side of the road going east. That left the south side of the road open for defendant Craig to use in passing, and that was the proper side for him to be on going east. It was certainly gross negligence for him to go to the wrong side of the road in order to run into the dogs." The case was tried in the Circuit Court without a jury, and the trial judge in his finding of facts holds that Craig "was guilty of gross negligence."

It will be noted that these courts concur in finding that the defendant was guilty of "gross negligence." Does this term sufficiently describe that character of wrongful conduct on the part of the defendant which relieves the plaintiff from the bar of his contributory negligence? We find no case directly in point. The phrase "gross negligence" runs through our cases and authorities generally. Its use is criticized as lacking in definiteness and tending to confuse, and without legal significance. See 45 C. J. pp. 664, 665, and 671, text and citations. Our own court has approved the frequently quoted statement that gross negligence is "nothing more than negligence with the addition of a vituperative epithet." Mariner v. Smith, 5 Heisk. 203. It would seem that negligence, in whatever degree, is inconsistent with a deliberate intent.

But the phrase appears to have acquired a meaning so close akin to intentional misconduct as to bring conduct so characterized within the exception to the rule barring recovery for contributory negligence. Bouvier defines gross negligence as: "The omission of that care which even inattentive and thoughtless men never fall to take of their own property. Jones, Bailments; Neal v. Gillett, 23 Conn. 437. Such as evidences wilfulness; such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness or wantonness. 2 Thomp. Neg. 1264, par. 52; such as implies a disregard of consequences or a willingness to inflict injury. Deering, Neg. par. 29; Lakeshore & M. S. Ry. v. Bodemer, 139 Ill. 596, 29 N. E. 692, 32 Am. St. Rep. 218." In Ruling Case Law it is said, the text being supported by numerous citations, that: "Gross negligence, however, is not characterized by inadvertence, but `by an absence of any care on the part of a person having a duty to perform to avoid inflicting an injury to the personal or property rights of another, by recklessly or wantonly acting or failing to act to avoid doing some injury, evincing such an utter disregard of consequences as to suggest some degree of intent to cause injury.' While, in the case of gross negligence, various terms have been used to express the mental state of the actor, the idea attempted to be conveyed seems to be that the act was done wilfully and intentionally." In 45 C. J. 667, to 671 the term is discussed, with full notes. It is said that: "While it has been considered that gross negligence carries with it the element of wilfulness, other authorities hold that the term gross does not imply the same thing as wilful, although negligence may be so gross as to evidence wilfulness." For the last statement the writer cites, among others, Southern Railway v. Terry, 3 Tenn. Civ. App. 445. In this case, in which writ of certiorari was denied by this court, while recognizing that contributory negligence is not a defense when the conduct of the defendant was wanton,...

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